Srinagar: Even as the Jammu and Kashmir government accuses New Delhi of denying sanction to prosecute the soldiers involved in human rights violations in the state, experts say that no sanction is needed for filing challans against the accused.
“After the charge-sheet is filed, the court has to see whether sanction under AFSPA (Armed Forces Special Powers Act, which gives immunity to soldiers), or ordinary procedural law is needed or not,” said Parvez Imroz, a well-know human rights defender and lawyer.
According to Imroz, the state government tries to escape responsibility by accusing the federal government of withholding sanction to prosecution. “Sanction is not needed for filing the charge-sheet,” he insisted.
AFSPA, by the way, is not the only legislation that shields the personnel of the armed forces. Section 197 CrPC (Section 549 in CrPC applicable to Jammu Kashmir) performs a similar function.
The Supreme Court of India has clearly laid down guidelines in Bakhshish Singh Brar VS Smt. Gurmej Kaur and Ors (AIR 1998, SC 257). The apex court observed, “It is necessary to protect the public servants in discharge of their duties. But it is equally important to emphasize that rights of the citizens should be protected and no excess should be permitted. ‘Encounter death’ by the police has become too common. In the facts of circumstances of each case, prosecution of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limits.”
In the light of this judgement, experts say the courts have to apply mind and see whether the official exceeded his limits and proceed accordingly. This also means that the police cannot wait for sanction as provided by Section 6 of the AFSPA and Section 197 CrPC. The police have to file the challan without delay. Whether sanction is needed or not is to be decided by the court.